Disability and Reasonable Accommodations under the American with Disabilities Act & the Fair Employment and Housing Act

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The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect disabled employees from discrimination, harassment and retaliation, and require employers to reasonably accommodate known disabilities of their employees. This is so that they may perform the essential functions of their jobs, and is required unless to do so would cause an undue hardship on the employer. Employees who associate with someone who has a disability are protected too.

The ADA applies to all employers with 15 or more employees and FEHA applies to all California employers with 5 or more employees.

California law is broader than the ADA and employers must always apply the law that provides the greatest benefit to employees.

Employees who contract COVID-19 may be considered disabled if the illness meets certain criteria and would be subject to the protections provided by those Acts. Moreover, an employee may be protected if they are caring for a family member with the illness pursuant to associational discrimination. It’s important for employers to consider their obligations pursuant to the ADA and FEHA in making decisions about employees return to work, leave requests, and requests for accommodation.

A detailed discussion of the FEHA or ADA can (and does!) fill volumes. The implications for all possible manifestations of legal issues is likewise vast and at this stage nearly incomprehensible; these subjects are beyond the scope of this Guide. The best way we think to handle this at this point is to provide the most fundamental rules and then answer the most frequently asked questions, outlined in the next section. This will certainly be a continually expanding discussion.

For more information contact us or consult https://www.dol.gov/general/topic/disability/ada and https://www.dfeh.ca.gov/employment/. We do provide herein the fundamentals of the law, and anticipated issues and solutions as can be seen now. These issues are also covered extensively in Sullivan On Comp Chapter Chapter 11: Return To Work.

DISABILITY DEFINED

In California, a person is considered disabled if the individual exhibits one or more of the following characteristics:

1. Has a physical or mental impairment that limits one or more of the major life activities.
2. Has a record of an impairment.
3. Is regarded as having an impairment.
4. Is regarded or treated by the employer as having a condition that is not presently disabling, but may become a disability.
5. Has any health impairment that requires special education or related services.

The FEHA provides protection to transitory impairments that limit a major life activity. The focus should be on the impairment’s nature and severity and its effect on any major life activities. COVID-19 is believed to be a transitory illness and may fall within FEHA’s definition of disability if it limits the major life activity of working.

Impairments must limit a major life activity in order to be protected. FEHA states that the term “major life activities” is to be broadly construed and include physical, mental, social and employment-related activities, including working.

Given California’s stated intent to broadly construe the definition of disability, employers should consult counsel when determining the disability status of an employee with COVID-19 who is unable to work.

RECORD OF, REGARDED AS, AND PROCEED AS DEFINED

In addition to protecting individuals who have known disabilities, FEHA also prohibits discrimination against individuals with a “record of” a disability, who are “regarded as” disabled, who are “perceived as” disabled, and who are “perceived as potentially” disabled.

California’s disability regulations state that a “record or history of disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability …. of which the employer or other covered entity is aware..

Employees who have recovered from COVID-19, were exposed to it and self-quarantined, or had a family member with the illness are protected under FEHA even if the COVID-19 illness doesn’t rise to the level of a disability.

SEE ALSO

• Other sections in this book

REFERENCES

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